Claimant:
Costantine

Respondent:
Royal Embassy of Saudi Arabia (Cultural Bureau)

Supreme Court provides some clarity on when state immunity can be used in relation to employment contracts and claims arising therefrom.

The claimant was employed in 2010 by the respondent embassy. She was initially a post-room clerk and later worked as a secretary to the Head of Cultural Affairs before moving back to the post-room. She had the ability to access confidential information through her role but did not do so (she was not aware at the time). The claimant brought claims against the embassy based upon direct discrimination and harassment.

The issue was whether the respondent could plead immunity under the State Immunity Act 1978.  The Tribunal held that it could not because the claimant’s employment was not an exercise of sovereign authority. That decision was upheld by the EAT which was then appealed to the Court of Appeal. The respondent filed a skeleton argument to the Court of Appeal but did not attend and the appeal was dismissed.

The Supreme Court dismissed the appeal from the Embassy. It held that there was a duty to consider the application of state immunity considering it was a mandatory rule of customary international law and domestic courts had to comply. This still arose where a party did not attend, as occurred with the Court of Appeal, as that duty to give immunity was placed upon the domestic courts.  The failure of the respondent to attend in the Court of Appeal was not a breach of any procedural rule but the Supreme Court did acknowledge that it was regrettable and a waste of court time.   The issue was then the nature of the claimant’s role and whether immunity then applied.  It was held that the role of technical and administrative staff would usually be ancillary and supportive although some may exercise sovereign authority if their functions were close to the governmental functions of the mission.  To this end, the employment of purely domestic staff was regarded as an act of private law rather than a sovereign act.  In determining the nature of the work, the access to confidential information was considered but that alone did not mean the claimant’s role was close to the governmental function of the mission. Therefore, because of the claimant’s proximity (or lack thereof) to governmental functions it was held that state immunity did not arise.  The employment claim could continue.

Cases relating to embassies may be unusual in the general range of employment cases, but the Supreme Court has provided guidance on the test of whether state immunity will arise in these types of claim. The nature of the role and the proximity to the governmental function will have to be considered but largely where the role is administrative or technical it was more likely to be a private law matter rather than one relating to sovereign interests.

You can read the case in full here:
https://www.supremecourt.uk/cases/uksc-2024-0061